ePrivacy regulations coming in 2019, how will they work for Social Media?

New EU-driven legislation will affect how you can market your services via social media. Nick Lewis explains all

The dust has not even begun to settle over GDPR and its impact on businesses’ processes, and yet there is another potential regulatory hurdle looming when it comes to contacting potential clients. The new legislation is entitled ‘The ePrivacy Regulation’ (ePR), and it will clarify what businesses can and cannot do when it comes electronic communication.

The legislation, which will come into effect later in 2019, will cover emails, texts, the internet, WhatsApp, Skype, online messaging, VoIP, the Internet of Things (IoT), apps, online advertising networks and telecommunications. In other words, every possible means of communication you can undertake with your desktop, laptop or mobile phone.

The regulation is set to replace the Privacy and Electronic Communications Directive 2002, and organisations are likely be given a transitionary period of 12 months to adopt the necessary processes to be compliant. Also, it is unlikely that a successful (or unsuccessful) Brexit will have any bearing on whether UK companies will have to comply with the legislation. If a business wants to market its services to individuals within the EU it will have to comply with the ePrivacy legislation.

At first glance, the outlook looks gloomy for businesses and marketers alike. People are still not 100% sure as to how stringent GDPR is going to be policed, as we’re all still waiting to see the first batch of fines (and possible legal appeals against them) resulting from the legislation. With ePrivacy, things can only become more stringent and potentially fraught.

However, if businesses are already adopting to GDPR, the mindset should be in place to think intelligently about their electronic communications. As with GDPR, the solution to a lot of the challenges posed by ePrivacy is disciplined record management of a business’ contacts and records. In other words, what information do you have on people and do you have the right to use it?

A sensible marketer would (and should) only contact someone on their database by a stated preferred method or channel. Why bother to tweet someone when they have explicitly stated that they only want to be contacted via email? This means that all relevant information gathered from a first point of contact must also be accompanied with efforts to get explicit clarification from the contact so that you can use that information. The additional hurdle or burden is record keeping, and making sure that processes to support this are supported and adhered to.

All this is not necessarily a negative. By clarifying with contacts what channels people want to be contacted on, marketers and businesses will potentially save a lot of time and money by not duplicating marketing processes to the same recipients (which potentially could antagonise). It will also mean that marketers will have to become more focused, astute and bespoke in their marketing messages, which should improve returns from that marketing activity. The more tailored and personalised a marketing message is to a recipient, the more likely they will constructively engage.

This is not to say the legislation will all be plain sailing or straightforward. From a professional marketer’s perspective, there will be some substantial challenges that will need to be clarified in the legislation. It has been said that the legislation will ‘ensure the confidentiality of all electronic communications and prevent surveillance from third parties’, and this could be possibly open to overly liberal interpretation. For example, what if more than one member of staff has access to a social media channel; would that be construed as violating confidentiality? If a business’ social media feed (let’s take Twitter, for example), follows clients or potential clients’ account, would that be considered surveillance?

Propped up

The targeted use of ‘pay per click’ advertising on platforms such as Google and Facebook will be the trickiest element for legislators, businesses and users to navigate. Given that the online communication’s world is financially propped up by targeted online advertising I can’t see a scenario emerging where targeted advertising (based on online users’ behaviour, that they have ‘voluntarily’ consented to be used for targeted ads) is diluted to the point of ineffectiveness. Nor can I see businesses being happy that their channels of online advertising are being severely curtailed (especially as traditional media continues to decline).

We will only be able to see the likely outcomes of ePrivacy when we see the legislation in detail, but some good self-discipline and common sense now will get companies if a position to deal with most aspects of the law when it comes to pass.

• Nick Lewis is the Marketing Manager of Get Seen Now, a marketing and promotions company with exclusive offers for ICPA members. See www.getseennow.co.uk/

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